Lawyering Is About Service, Not Self-Actualization

Around a quarter-century ago I was slouching through Evidence class when the professor called on me and posed a question about the admissibility of some witness statement. I gave a rule-bound answer: the admissibility was governed by a particular rule and would turn on specific factors and in my view weighed in favor of excluding the statement. The professor made a face and said "that wasn't a particularly profound answer." "It wasn't a particularly profound question," I replied, and the class laughed and the professor threw a piece of chalk at me. That semester I got a B- in Evidence (which at that institution was the equivalent of hauling you behind the barracks and shooting you) and an A+ in Tax. Requiescat in pace, my ability to take grades seriously.

The professor was unhappy because he was looking for an answer that interrogated the arbitrary dichotomies between admissible and not-admissible and illuminated the ways that purportedly neutral rules are socially constructed in the context of various social hegemonies and so on and and so forth. I thought all of that was swell but mostly wanted to learn how to try cases. I went on to learn actual evidence elsewhere; the professor went on to have unfortunate experiences trying to apply the rules-don't-matter attitude to actual litigation.

We demand a curriculum more clearly focused on the mission of creating leaders for the global common good. Such courses will provide a foundation of social justice for graduates in careers of all types, and will work synergistically with the demands above.

. . . .

Create and incorporate a new “capstone” course into the 1L curriculum with more big-picture elements of history, philosophy, critical legal studies, implicit bias, and critical race/feminist theory. The traditional 1L curriculum focuses so intensely on the minutiae of case law that it is easy to lose sight of why many of us came to law school in the first place. This course would serve to break the cycle of indoctrination and redirect student focus to the global common good.

This was, more or less, the attitude of Professor Chuck-Chalk: rules and caselaw are mundane, a distraction from Big Ideas about the common good.

Now, I have no objection to students spending three years and $150,000 learning about Big Ideas. How else are we going to manufacture the next set of people to teach about Big Ideas?

But I do have a strong objection to law schools tolerating — let alone cultivating — a disdain of the nuts and bolts of competent law practice. I especially have an objection to that disdain being cultivated in the name of "social justice." People traditionally recognized as being in need of social justice are also the people in most dire need of competent legal representation. When they have a few days to contest an eviction or they've been arrested and may lose their job, they don't need someone who is exquisitely prepared to explain and denounce the racist and oppressive structures that led to their unfortunate predicament. They need someone who knows what he or she is doing. They need someone who knows all of the petty substantive and procedural rules of landlord-tenant law and how the local court actually operates. They need someone who can swiftly assess whether an arrest or interrogation was unlawful and formulate a plausible and effective plan for dealing with it. They need someone who knows how to get things into evidence in court even under pressure on their feet when the judge is being difficult and the opposing counsel is making nonsensical objections. They need a grubby little practitioner.

People are quicker to understand this in other contexts. If a hairdresser could argue movingly that gendered hairstyles are based on antiquated stereotypes, but had no idea how to cut hair, people would generally accept that he was a poor hairdresser. If you encountered a woman in labor experiencing dangerous complications who had been too poor to get prenatal care, you'd seek a skilled high-risk pregnancy physician, not someone who had focused on learning what socioeconomic forces deprive poor women of adequate care. But for some reason — perhaps because so many dramatic social changes have come through the legal system — people don't seem to understand that lawyering requires actual tradesman skills too. Thurgood Marshall appealed to social justice when he successfully argued Brown v. Board of Education before the Supreme Court, but he didn't get there by Big Ideas alone; he got there by developing the sort of meticulous legal skills that led to an almost unprecedented win record before the court. He worked, and he didn't think he was too good to grub around with rules and precedents.

Our system is mediocre at best at delivering justice to society's least powerful. Do you want to be able to explain why? That's fine, go do that. But if you plan to address social injustice as a lawyer by actually representing its victims, it is absolutely perverse and self-indulgent to focus on theory rather than skills and rules.

Comments

I agree with you about one thing. As a guy who wanted to actually be a lawyer, the Law Clinic was the absolute best and most worthy part of my education. I wish I could have have worked in the law clinic continuously throughout my time in law school, in fact. It would have been more useful to me than a great many courses I actually ended up spending a great deal of money to participate in.

I also took Jurisprudence (that's the class with all the philosophy of law, feminism, social crit stuff) as a 3L, and I think that was also very helpful to me. I'm not ready to call for it to be mandatory or anything, but I hate to denigrate it.

It just needs to stay in its own box, I guess. If you're having to argue social justice to the judge, then you've probably already lost, in my experience.

My boss (renowned practitioner in our area) described this the other day: "If our clients come to us and need a ditch dug, they don't care what our title is, or what we look like, or what our core values are, just get in there and dig the fucking ditch."

That professor should not have chucked chalk at you. I very much agree with you that the nuts and bolts of law practice are important. I have had my share of opponents for whom the rules of evidence were basically mysterious. But there's nothing wrong with bringing up issues of social justice as encoded into the rules either. Sometimes the rules, including the rules of evidence, are stacked against the person with less power. Sometimes you can win by exploiting those rules. It can be helpful to have some insight into power inequities built into the rules, especially if you are lucky or unlucky enough to be tasked to apply rules to real people. Surely we want people in judicial or quasi-judicial roles who know that rules applied mechanically can keep out reliable evidence or otherwise work injustice. A judge who doesn't suspect that that's the case is not going to be wise, and in my view we want wise judges, and wise lawyers too.

It is a noble pursuit to want to help those who society have forgotten or passed by, but unless they know the system deeply they can give an awesome press conference extolling how society has failed the client as their client goes to jail convicted of a crime. That warm feeling of having explained it all should be cold comfort when the client is in a cell.

If you ask the client, they aren't going to care that deeply if the lawyer understands that 100 years of racism lead to this moment – they will care that the lawyer can show how they violated laws & statutes to try and convict them. That evidence illegally gathered was excluded rather than an impassioned plea for the court to understand life isn't easy for this poor victim of circumstance.

Life isn't fair. Your life experiences are not everyones life experiences. If you care about societal problems you can do much more in a courtroom representing someone who needs good representation rather than ticking off boxes on a form to make sure the client fits the proper criteria of a victim of society you should maybe represent as long as it doesn't offend someone on another list of disenfranchised people you were taught are more deserving of assistance.

I know lawyers who are great people. I know lawyers that are pricks. I know lawyers I can out-think. I know lawyers who have deep thoughts well outside of the law. I know lawyers I think are a cancer on society. I know lawyers who manage to assist society without needing a special course to tell them all of the ills of society. They are just like regular people, but they went to school and were trained about the law. To quote (maybe paraphrase) a lawyer I've crossed paths with – I represent clients not causes. I don't care if you can hold my hand and tell me how horrible it is that society mistreated my people systemically, I care if you tell me the case is over because we won. Social Justice classes won't make them better lawyers (or people) but it might make them worse at being lawyers.

Funny thing. As I was driving in to work this morning, non-winning Powerball ticket tucked in the visor, I fantasized about what I would do if my ship had come in, and the winnings were mine. I figured, hey, provide for the family, blah blah blah, and endow a chair or fund a program in practical lawyering at my alma mater.

I had a blast and learned a lot in my Critical Race Theory/Feminism Intersectionality seminar at UCLA (you are an awesome and challenging scholar, Professor Crenshaw, although I suspect many readers of this blog may hold contrary or at least not fully harmonious views on this topic), but I'll be damned if I walked out of it with anything useful to apply to the nits-and-bolts problems of representing clients. But I did at least gain an enhanced understanding of the world my indigent, usually Black or Latino defendants lived in, and a modicum of insight about how truly badly it sucked to be them.

I learned a lot more about How To Lawyer representing rejected unemployment claimants in the trial advocacy clinic — including how to do your best and lose because the facts are shitty and your client is a liar — and would recommend such coursework to any law student who actually wants to be a courtroom advocate, and also for those on the fence who showed up for law school with a humanities degree and no appetite for making their own way in the world, and no clue what to do with themselves.

But I do have a strong objection to law schools tolerating — let alone cultivating — a disdain of the nuts and bolts of competent law practice. I especially have an objection to that disdain being cultivated in the name of "social justice."

Amen.

Even Superman, in order to use his superpowers only for good and never for evil, must first learn exactly what those superpowers can and cannot do, learn how to use those superpowers effectively, and learn how to avoid Kryptonite.

Ah, billion-dollar Charlie. I've never met him, though if the "lesson" I sat in at his school, delivered by a lawyer even more famous (and famously high-priced), is any indication of how that school operates, I'm surprised you bothered to show up to lectures.

As for the idea that the rules of evidence do not necessarily serve justice, I think you could convince anyone of that in about three sentences. After all, the rules of evidence are based on… jack squat.

Well of course, but there should more of both. In my experiences at law school the mundane is taught at the expense of "big ideas". We all have likely been told "arguing policy means you've already lost", and we accept that widely because 90% of us will be practicing law below an appeals court. But 'big ideas'–or better phrased morality–has just as much importance in the grand scheme of thing.

The problem with erasing the big ideas is you cultivate a certain sense legal positivism and resentment toward judicial activism. As a result, traditionalists (positivists) put themselves in an odd box when it comes to things like Obergefell and Dread Scott–an analogy conservatives currently seem to think is an intelligent one. The lawyer who is a positivist will find these cases somewhat difficult to separate given their loyalty to the rigidity of legal process. The lawyer that sees the broader moral underpinnings of the Constitution will not.

I feel the rejection of social justice by libertarians is the fear that individual rights will not survive. Perhaps that is right, seeing as most social justice paths stand in contrast to individualism. But I think that is a mistake, both by advocates and critics. Individual rights are still the best protections, and almost every argument made in social justice will rely explicitly or tacitly upon it.

One of the most surprising things about law school was the number of students that wanted to "help people" or work for social justice, but had no grasp of how difficult it is to have a career doing that type of work. Only the very top students can make a living working on behalf of the poor; you need the backing of a non-profit or the government, and they have their pick of the litter. The rest of us can just hope to scrape together a few hours of meaningful pro bono every year.

I have always maintained that there are much cheaper and more effective ways to help people than to become a lawyer. And unless you are one of the best, you probably won't even get the chance.

I think the problem is that these schools seem to feel that they are training not future lawyers, but future politicians. Because obviously, the only reason to go to Harvard Law is to become a powerful national-level politician. If you just wanted to be some boring courtroom lawyer, go to some boring (lesser) law school. Fool.

Personally I would be happier if our politicians and lawmakers exhibited greater understanding of the law as it actually is, including how it actually plays out in and out of courtrooms, in addition to pretending to understand the "bigger picture" policy and society aspects. Maybe that's just me.

I agree with Ken completely. I sometimes think pro bono work for some is more for the attorney than the client. I would also note that in my limited pro bono experiences (child custody, landlord/tenet, civil rights, asylum) I have found that what my clients often really needed was not a good lawyer, but rather guidance from a financial or mental health professional. Many, but not all, got themselves into the situation in which they needed assistance because they made bad choices, did not understand the system or were overwhelmed by personal problems. I, thus, found myself trying to give financial or life skills advice more than legal advice and was not convinced that my help in solving their legal problem was necessarily going to help them with their long term and more serious issues. While maybe that was not my job, I think as a profession we should be a bit more humble as well as proactive and try to provide resources to pro bono attorneys so they can guide their clients more easily towards those who can be even more helpful.

That is why the bars are struggling. A few make the rules and a few follow them. When outsiders follow the rules insiders chuckle "rules, there are no damn rules you rambling incoherent prose put that book down".

Listen I don't care who writes the rules. You let me play I'll give you a damn good game until you change your rules again.

Failure to stricture on the rules leaves black holes of payoffs and economic justice and collegiality among friends. No rules no justice period!

There is social justice going on now. Its fraternal among the brothers and the sisters of the law.

So I suppose I agree with you now get to it and open up the rules for everyone to make and every one to follow, always.

I would have caught that chalk. Which reminds me when I tossed an eraser at a professor once.

L. Max Taylor: For what little it's worth, I interpreted chalk-chucking as somewhat more along the lines of a good-natured raspberry as a response, than as some sort of vindictive response. MIT's Professor Sussman (of SICP fame) in one of his smaller lectures regularly did it to students who started dozing, clearly a bit jokingly even as he quite seriously meant to make them jump awake. (I can neither confirm nor deny reports that I was one of those students, in one isolated case late in the term.) I interpreted the Nesson anecdote similarly, although given the sparseness of detail I could have read too generously.

Look, if you're a lawyer, and you want to help the oppressed without, y'know, actually using the law, put on red leather and start prowling Hell's Kitchen. (Or get a blood transfusion from your gamma-irradiated cousin.)

In fairness, studying law through a sociological lens to determine the possibly-unstated motives behind said law can be a valuable tool in actual courtrooms. It SHOULDN'T be the sort of thing one needs to know, but we don't live in an impartial system with impartial judges. We live in a world where judges get elected by popular vote and thus need to appear Tough On Crime, which, y'know, might interfere with their impartiality, and in those cases, knowing your way around the system behind those judges is the key to neutralize that thread.

But, if these students wanted to emphasize THAT as part of their side project's curriculum, they should have said so in the flyer.

Sylocat–you mention "elected judges"–what a barbarism, in my opinoin. In the state where I practice, Vermont, judges are appointed by the Governor and subject to confirmation (and reconfirmation at 6-year intervals) by the Legislature. The quality of judging here is, by and large, pretty good. And if you have repeated problems with a judge that go to the judge's fitness, you can go to the reconfirmation hearings and give testimony. (Not that I have ever done that, or had occasion to do it, but I could!)

Did your school have a litigation clinic? If you participated, you'd have found that there a LOT of people with fairly simple legal problems that can be helped quite a bit with little more than a sternly worded letter on legal letterhead – sometimes even just a phone call. I think I actually argued in front of a judge once or twice, filed a handful of motions, wrote some subpoenas, but a lot of the daily work was some simple advice and some quick research. "Here's the law, here are your options, here's what I recommend."

A particularly satisfying branch that came up frequently in my clinic is immigration. Somebody with an unusual status, or who can't obtain a document like a birth certificate, might be told (erroneously) by a relevant authority that they're not allowed to attend school, or get a scholarship, or work, or travel, etc. One letter from me to that authority's boss or lawyer, and my client can get on with his life.

There's also a lot of value-add in knowing which local social services handle which types of problems, and the best way to contact them. A client who comes to you with a legal problem may also need a bed for the night, or a free medical clinic, or similar. Once you make contact with the client you can do a lot of good by doing stuff that isn't strictly lawyering, but is pretty quick and easy once you've been around the system for a while.

You certainly don't have to be the best of the best. Most good-sized cities have pro bono legal clinics that are so desperate for help they use law students all the time, and you can always set up on your own. You would very likely qualify for a loan-forgiveness (or indefinite deferral) program for your federal student loans and many others besides, so your tuition costs aren't much of an excuse. The only problem is the starting pay (and the fact that there's not much prospect of promotion or raises). You won't quite starve, but you're going to have a lot of trouble raising a family in a major metropolitan area.

"But for some reason — perhaps because so many dramatic social changes have come through the legal system — people don't seem to understand that lawyering requires actual tradesman skills too."

I think it's more that lawyering is brain work. And, especially with the advent of the internet, an increasingly large number of people do not respect brain work. Hair cutting is hand-work – you use your hands to do a thing, and everybody can see the result – the hair got cut, and looks pretty similar to the photo in the styles book. Doctoring is hand work – you use your hands to deliver the baby, and everybody agrees on the result – you either screwed up or you didn't.

Lawyering is brain work. You use your mind to research the topic, to learn the rules, to present the evidence… and when you're done, sure you either won or you lost, but very rarely will everybody (or sometimes even anybody) agree that you SHOULD have won or lost. Scientists deal with this too – sure, there's some hand work, but it's mostly brain work. It's mostly coming up with big theories and while the evidence might support them, well, it's not like a well built house, is it? It COULD be wrong. And if it COULD be wrong, and I WANT it to be wrong, well, it probably IS wrong, isn't it?

With the internet, everybody is an expert on everything. And if there's no physical output, there's nothing to force them to realize that they are wrong. So it's easy to disrespect, or simply fail to understand, the skills required to do brain-work well. After all – if I 'repair' my car, I'd be amazed if I got 10 feet before it turned into a rolling ball of fire. But heck, I can figure out what the civil war was about all on my own – who needs 'experts' who've 'studied' the topic for 'decades'?

I think both those elements are important. Nuts and bolts rules of the law make up the majority of most of our practices. But as I sit in my office today writing an appellate factum, it is necessary both for me to address the rules AND to address the policy implications of the interpretation of those rules proposed by my opponent.

My law school had a mandatory single-semester first year class in legal theory that briefly introduced most of the major schools of thought in the area. I took jurisprudence, an optional upper-year paper course (woo Kant!) and found it both interesting and useful to think about my perception of the law and challenge the assumptions that underlie it.

There are lots of lawyers who will do personal injury work or fairly cookie-cutter litigation, or who will draft enforceable contracts, who will never really need to address how the rules that we have interact with the society in which they exist. There are law professors who will deal almost exclusively with theory. For me, as a litigator, both those things are important. I will never argue that there needs to be less of the actual law in law school, although I found that most of it was learned more effectively on the ground than in a classroom. But it doesn't exist in a vacuum, and I think there's value in recognizing that.

As I turn this over in my head, I think that it's a mistake for a law school to force a certain paradigm on students, whether that paradigm is law and economics, racial justice, religiously oriented law, and so forth. Law schools do it anyway (and they will continue to do so), but I don't think it's particularly right.

On the other hand:

1) I think it's important for law students to understand WHY they want to be lawyers. Maybe they believe in economic justice. Maybe they believe in protection of wealth, in shrinking the size of the federal government, or in growing federal government to prevent injustice. In all cases, I think it's worth having electives available so that students can explore this "why," learn more about it, and maybe have their assumptions challenged.

2) My contracts professor once joked that law is the world's "second" oldest profession. It's been around for a long time, and I think there's value in reminding students of the history of the profession, and even some of the philosophical underpinnings of why we have law in the first place.

Granted, these latter areas lack the same practical value as knowing the best ways to draft interrogatories, but they help an attorney be a well-rounded individual, rather than a billables-creating monster.

You'll note that Dred Scott, a slave, and even the bloody handed slaves of the Amistad, had their days in court. It's interesting that there's all this identity, history, and public policy talk about the one institution in our society which is most explicitly intended to pay no attention to that. Courts are meant to be places where rules are applied, irrespective of "who" the parties are, or aren't.

It bothers me that there is this movement which has as its focus the removal of that equality before the law.

I represent my State in court. I would never dream of suggesting that the fact that my master educates children, heals the sick, preserves order, eases transportation, and does dozens of other worthy things should influence what happens in a case. My master is a party to litigation, just as is the child murderer across the room. We share the dignity of that title today.

The little bit of "Critical Legal Studies" to which I was exposed makes me entirely agree with Mr. White. It's just indoctrination, an effort to implant an outlook.

I would also note that, rich or poor, when conflicts get to court today, any conception of justice – social or otherwise is long ago out the window. Even merely the competent application of the rules of law is a grandiose expectation.

As a small business person I have had to handle numerous legal matters pro see.
This is not my skill, It is a world I am lost, in. I would far rather pay a lawyer, but it is rare that the conflict is sufficient scale and the legal fees sufficiently reasonable that hired representation makes economics sense. Put differently losing makes more sense than paying a lawyer to win.

In my experience magistrates, judges, and the myriads of lawyers swirling around the courts are themselves unfamiliar with basics of law.
there is a mindless patina of process over everything – which mostly involves filing the right forms and even that is only loosely followed.

Maybe in the ether of higher courts law is practiced with more skill and precision,
but again if one must take a case through 3 layers of appeals just to get basic competence,
much less justice, then something far larger is wrong.

Gosh. I am a British barrister (Chancery counsel),. I taught law for some years before coming into practice – Equity & Trusts / Jurisprudence / Legal History. The position here is (as I understand it), different to yours in that Law usually (not necessarily) studied as a first degree, where it is taught purely as an academic subject. One then takes a year to qualify professionally in one or other branch of our divided profession.. I taught both degree students and for the Bar Finals. My own degrees (at London University), were pure black letter law.

I have been out of teaching for too long to know the extent to which the ideas you discuss have taken root here,, but they had not done so by the time I left. There were various Sociology of Law options, but they were not particularly popular and on the occasions when they were compulsory, the great majority of students regarded them as a tedious obstacle to be overcome.. Since I left the Human Rights specialism has arisen, and I suppose that may have had some impact.

It may not be surprising to hear a property lawyer and professional litigator say it, but I cannot conceive of any circumstances in which social justice expertise would be of any value at all to me or my clients. Any attempt to deploy before the courts in which I practice would be counter-productive.

My experience at Oxford in the late 1980s was almost the complete opposite of this. Given I went to the 'People's Republic of Wadham' with a roster of lefty types on the College staff, I might have got a similar fool teaching me Law. Instead our group of left-leaning students were told clearly on the first day: "A lot of you will have silly notions of 'Justice' and fighting for the good. Forget about all that, we are going to teach you Law". A statement that might have freaked us out if the chap telling us that wasn't such a brilliant and funny man.

There were chances to skew your studies towards thinking about Big ideas, and commie young me took Criminology and Moral and Political Philosophy instead of some more sensible courses. In the end I finished my studies but never practiced, which was undoubtedly better for the pool of clients that I might otherwise have been inflicted on. However, they taught me to think and argue in a way that was far better and balanced than my natural flaws led me to.

Point is, a truly inspirational teacher who believes in the benefits of Law in people's lives gives their students the strength to be purely practical street-fighters as well as creative thinkers within the bounds of the rules. That should be the focus, even though options to do otherwise should be there for the foolish and philosophically minded.

As somebody who is firmly on the Liberal side of the Culture Wars, it terrifies me that our soldiers might be making themselves useless for the fight by not learning the rules that govern it. This is a 3000 year old struggle and no-one has won yet, despite a continual supply of Big Ideas and idealism on all sides. It is the day-to-day, on the ground, in the Courts, decisions that shift things slowly and there is always opposition and an intractable reason things are not already perfect.

Hurrah for Mr Jeffrey Hackney of Wadham College Oxford and the many decades he has both taught students to think and to know the Law. (I still have the badge he gave out before Finals with 'Taking a Chance on Law' – he gave an individual one to each student with a different popular song title replacing the word 'Love' with 'Law'. Better than a propelled chalk-based missile any day.)

From my (admittedly layman's) perspective the one complicating factor would seem to be that, while these assorted highflown theoretical considerations are exactly what you don't want the lawyer trying to pull your ass out of a particular fire to be fascinated by; they are exactly the ones that you want judges(at any level; but the higher you go the more important it becomes) and legislators to be very concerned about; and both groups are drawn pretty heavily from lawyers; so if you lean too hard on pure practicality you increase your odds of regularly enduring the truly chilling spectacle of someone who subscribes to the illusion that law exists in something approaching a socially neutral environment actually getting to make it or someone who treats a myopic taste for procedural correctness without the slightest reference to outside considerations as good work ruling on the cases that make it to higher courts precisely because you can't solve them that way.

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